EXHIBIT 2.4
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AGREEMENT AND PLAN OF MERGER
by and among
ALAMOSA PCS HOLDINGS, INC.
(a Delaware corporation)
and
TWENTY HOLDINGS, INC.
(a Delaware corporation)
and
TEN ACQUISITION, INC.
(a Delaware corporation)
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Dated as of December 13, 2000
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of December 13, 2000
(the "Agreement"), by and among Alamosa PCS Holdings, Inc., a Delaware
corporation ("Alamosa" or, with regard to the period upon and after the
Effective Time (as hereinafter defined), the "Surviving Corporation"),
Twenty Holdings, Inc., a Delaware corporation ("Holdco"), which is a direct
wholly-owned subsidiary of Alamosa, and Ten Acquisition, Inc., a Delaware
corporation ("Holdco Sub"), which is a direct wholly-owned subsidiary of
Holdco and an indirect wholly-owned subsidiary of Alamosa (Alamosa and
Holdco Sub, collectively, the "Constituent Corporations" and each, a
"Constituent Corporation").
W I T N E S S E T H:
WHEREAS, Alamosa is a corporation organized and existing under
the General Corporation Law of the State of Delaware (the "DGCL") and is
authorized to issue a total of 300,000,000 shares, consisting of: (i)
290,000,000 shares of common stock, par value $.01 per share ("Alamosa
Common Stock"); and (ii) 10,000,000 shares of preferred stock, par value
$.01 per share ("Alamosa Preferred Stock"), of which 300,000 shares have
been designated Series A Junior Participating Preferred Stock, par value
$.01 per share ("Alamosa Series A Preferred Stock");
WHEREAS, Holdco Sub is a corporation organized and existing
under the DGCL and is authorized to issue a total of 1000 shares, in a
single class of common stock, $.01 par value per share ("Holdco Sub Common
Stock"), of which, as of the date hereof, 100 shares are issued and
outstanding (the "Outstanding Holdco Sub Common Shares");
WHEREAS, as of the date hereof, Holdco holds of record all of
the Outstanding Holdco Sub Common Shares and no shares of Holdco Sub Common
Stock are issued but not outstanding;
WHEREAS, Holdco is a corporation organized and existing under
the DGCL and is authorized to issue a total of 1000 shares of common stock,
par value $.01 per share ("Holdco Common Stock"), and at the Effective Time
will be authorized to issue a total of 300,000,000 shares, consisting of:
(i) 290,000,000 shares of Holdco Common Stock; and (ii) 10,000,000 shares
of preferred stock, par value $.01 per share ("Holdco Preferred Stock"), of
which 300,000 shares will constitute, immediately after the Effective Time,
a series of Holdco Preferred Stock identical to Alamosa Series A Preferred
Stock, having the designation "Series A Junior Participating Preferred
Stock" ("Holdco Series A Preferred Stock"). As of the date hereof, there
are 100 shares issued and outstanding of Holdco Common Stock (the
"Outstanding Holdco Common Shares");
WHEREAS, as of the date hereof, Alamosa holds of record all of
the Outstanding Holdco Common Shares and no shares of Holdco Common Stock
are issued but not outstanding;
WHEREAS, the respective Boards of Directors of Alamosa, Holdco
Sub and Holdco have determined that it is advisable and in the best
interests of each of Alamosa, Holdco Sub and Holdco and their respective
stockholders that Holdco Sub be merged with and into Alamosa, with Alamosa
continuing as the Surviving Corporation, in accordance with the terms and
conditions of this Agreement (the "Merger"), and accordingly the Boards of
Directors of each of Alamosa, Holdco Sub and Holdco have approved and
authorized this Agreement and the transactions contemplated hereby,
including the Merger; and
WHEREAS, it is contemplated that the Merger will be effected in
accordance with Section 251(g) of the DGCL, and that the Merger and the
exchange of shares of capital stock of Alamosa for shares of capital stock
of Holdco shall be a transaction described in Section 351(a) and/or Section
368(a) of the Internal Revenue Code of 1986, as amended (the "Code"), and
that no income or gain will be recognized by Alamosa or Holdco or their
respective stockholders as a result of the Merger.
NOW, THEREFORE, in consideration of the premises, the mutual
agreements, promises, covenants, representations, warranties,
acknowledgments and other terms, conditions, and provisions set forth
herein, and other good and valuable consideration, the sufficiency and
receipt of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
THE MERGER
1. The Merger.
1.1 The Merger; Filing and Effective Time. Subject to and in
accordance with the terms and conditions of this Agreement and the DGCL,
this Agreement and the certificates of the respective secretaries of
Alamosa and Holdco Sub attached hereto as Exhibits A and B, duly executed,
shall be filed with the Secretary of State of the State of Delaware (the
"Delaware Secretary of State") by the Surviving Corporation at or as soon
as practicable after the Closing (as defined below). The Merger shall
become effective at the time when this Agreement is so filed with the
Delaware Secretary of State (the "Effective Time").
1.2 Closing. Subject to and in accordance with the terms and
conditions of this Agreement, the closing of the Merger (the "Closing")
shall take place as soon as practicable after satisfaction of the latest to
occur of the conditions set forth in Article IV hereof (the "Closing
Date"), at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Xxxx
Xxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, unless another date or place is
agreed to in writing by the parties hereto.
1.3 Effects of the Merger. The Merger shall have the effects
set forth in Section 259 of the DGCL.
1.4 Certificate of Incorporation of the Surviving Corporation.
The Amended and Restated Certificate of Incorporation of Alamosa, as in
effect immediately prior to the Effective Time (the "Alamosa Charter"),
shall be the certificate of incorporation of the Surviving Corporation (the
"Surviving Corporation Charter"), except that the following amendments
thereto are to be effected by the Merger upon the Effective Time:
A. The Surviving Corporation Charter shall be amended by
deleting Article 1 thereof in its entirety and inserting in lieu
thereof the following: "ARTICLE 1. Name. The name of the Corporation
is Alamosa (Delaware), Inc. (hereinafter called, the
"Corporation").";
B. The Surviving Corporation Charter shall be amended by
deleting Section 4(a) thereof in its entirety and inserting in lieu
thereof the following: "(a) Stock Authorization. The aggregate number
of shares of capital stock that the Corporation shall have the
authority to issue is 10,000 shares, which shall consist of (i) 9,000
shares of Common Stock, par value $0.01 per share (the "COMMON
STOCK") and (ii) 1,000 shares of Preferred Stock, $0.01 par value per
share (the "PREFERRED STOCK")."; and
C. The Surviving Corporation Charter shall be amended by adding
and inserting, immediately following Article 13 thereof, a new
Article 14 thereof, to read in its entirety as follows:
Article 14. Vote by Stockholders of Alamosa PCS Holdings, Inc.:
Any act or transaction by or involving the Corporation, other
than the election or removal of directors, that requires for
its adoption under the GCL or this Amended and Restated
Certificate of Incorporation the approval of stockholders of
the Corporation shall, pursuant to subsection (g) of Section
251 of the GCL, require, in addition, the approval of the
stockholders of Alamosa PCS Holdings, Inc., a Delaware
corporation, or any successor thereto by merger, by the same
vote as if required by the GCL and/or this Amended and Restated
Certificate of Incorporation.
1.5 Bylaws of the Surviving Corporation. The Bylaws of Alamosa
as in effect immediately prior to the Effective Time (the "Alamosa Bylaws")
shall be and continue in full force and effect as the bylaws of the
Surviving Corporation upon and after the Effective Time, unless and until
duly amended, altered, changed, repealed, and/or supplemented in accordance
with the DGCL (which power and right to amend, alter, change, repeal,
and/or supplement, at any time and from time to time after the Effective
Time, are hereby expressly reserved).
1.6 Directors and Officers of the Surviving Corporation.
A. The respective members constituting the whole Board of
Directors of Alamosa (the "Alamosa Board") immediately prior to the
Effective Time shall be and continue as the respective members constituting
the whole Board of Directors of the Surviving Corporation upon and after
the Effective Time, until such members' respective successors are duly
elected and qualified or until such members' earlier death, resignation,
disqualification or removal and unless and until the number of members of
such Board of Directors shall be duly increased or decreased in accordance
with the DGCL (which power and right to increase and decrease, at any time
and from time to time after the Effective Time, are hereby expressly
reserved).
B. Each person serving as an officer of Alamosa immediately
prior to the Effective Time shall be and continue as an officer of the
Surviving Corporation, holding the same office or offices, upon and after
the Effective Time, until such person's successor is chosen and qualified
or until such person's earlier death, resignation, disqualification, or
removal (which power and right to remove are hereby expressly reserved).
1.7 Further Assurances. At any time and from time to time upon
and after the Effective Time, as and when required or deemed desirable by
the Surviving Corporation or its successors or assigns, there shall be
executed, acknowledged, certified, sealed, delivered, filed, and/or
recorded, in the name and on behalf of any and each Constituent
Corporation, such deeds, contracts, consents, certificates, notices, and
other documents and instruments, and there shall be done or taken or caused
to be done or taken, in the name and on behalf of any and each Constituent
Corporation, such further and other things and actions as shall be
appropriate, necessary, or convenient to acknowledge, vest, effect,
perfect, conform of record, or otherwise confirm the Surviving
Corporation's (or its successors' or assigns') right, title, and interest
in kind to, and possession of, all the property, interests, assets, rights,
privileges, immunities, powers, franchises, and authority of each
Constituent Corporation held immediately prior to the Effective Time, and
otherwise to carry out and effect the intent and purposes of this Agreement
and the Merger. The officers and directors of the Surviving Corporation (or
its successors or assigns), and each of them, upon and after the Effective
Time, are and shall be fully authorized, in the name and on behalf of each
Constituent Corporation, to do and take and cause to be done and taken any
and all such things and actions, and to execute, acknowledge, certify,
seal, deliver, file, and/or record any and all such deeds, contracts,
consents, certificates, notices, and other documents and instruments.
ARTICLE II
EFFECT OF THE MERGER ON THE
CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS
2. Effect on Capital Stock. Upon and as of the Effective Time,
by virtue of the Merger and without any action on the part of the holders
of the respective shares:
2.1 Conversion of Holdco Sub Shares. Each Outstanding Holdco
Sub Common Share shall be converted into one validly issued, fully paid and
nonassessable share of common stock, par value $0.01 per share (the
"Surviving Corporation Common Stock"), of the Surviving Corporation, to be
issued and deemed to have been issued by the Surviving Corporation
automatically and immediately upon and as of the Effective Time; the
capital of the Surviving Corporation in respect of each share of Surviving
Corporation Common Stock to be an amount equal to the par value thereof as
permitted under the DGCL and such Outstanding Holdco Sub Common Shares
shall be canceled and cease to exist.
2.2 Conversion of Alamosa Shares. Each share of Alamosa Common
Stock issued and outstanding (the "Outstanding Alamosa Common Shares"),
together with the related rights (the "Rights") distributed to holders of
Outstanding Alamosa Common Shares pursuant to the Rights Agreement, dated
as of January 31, 2000, between Alamosa and ChaseMellon Shareholder
Services, L.L.C., as Rights Agent, shall be converted into the right to
receive one validly issued, fully paid and nonassessable share of Holdco
Common Stock; and the Outstanding Alamosa Common Shares, together with all
Rights attached thereto, shall be canceled and cease to exist.
2.3 Changes in Capital Structure. If, at any time after the
date hereof and prior to the Effective Time, Alamosa shall authorize, issue
or redeem capital securities, this Agreement shall be deemed amended to
provide for such change and to provide for the issuance in the Merger of
Holdco securities having substantially identical terms to such capital
securities of Alamosa.
2.4 Notification of Transfer Agent. Prior to the Closing Date,
Holdco Sub and Alamosa shall notify their respective transfer agents of the
conversions of shares of Alamosa stock and of shares of Holdco Sub stock
and the cancellation of shares of Alamosa stock pursuant to Section 2.2
hereof.
2.5 Stock Certificates. Upon and as of the Effective Time, by
virtue of the Merger and without any action on the part of either of the
Constituent Corporations or Holdco, the holders of the respective shares,
or any other person:
A. Holdco. The shares of Holdco Common Stock into which the
Outstanding Alamosa Common Shares shall have been converted pursuant
to Section 2.2 hereof shall be represented and evidenced by the same
stock certificates that previously represented and evidenced such
Outstanding Alamosa Common Shares; and
B. Alamosa. Holdco, as the holder of the certificate (the
"Holdco Sub Common Stock Certificate") that immediately prior to the
Effective Time evidences the Outstanding Holdco Sub Common Shares
may, at Holdco's option, surrender the same to the Surviving
Corporation for cancellation, and Holdco shall be entitled to receive
from the Surviving Corporation in exchange therefor a certificate
representing and evidencing the shares of Surviving Corporation
Common Stock into which Holdco's Outstanding Holdco Sub Common Shares
shall have been converted. Until surrendered, the Holdco Sub Common
Stock Certificate shall represent and evidence the shares of
Surviving Corporation Common Stock into which the Outstanding Holdco
Sub Common Shares theretofore represented and evidenced thereby shall
have been converted pursuant to Section 2.1 hereof.
ARTICLE III
ADDITIONAL AGREEMENTS
3.1 Directors and Officers of Holdco Upon the Effective Time.
Holdco shall take such action as shall be necessary to provide for the
following:
A. Directors. As of the Effective Time: (i) the number of
members constituting the whole Board of Directors of Holdco (the "Holdco
Board") shall be equal to the number of members constituting the whole
Alamosa Board immediately prior to the Effective Time; and (ii) the Holdco
Board shall consist of all the persons serving as members of the Alamosa
Board immediately prior to the Effective Time.
B. Officers. As of the Effective Time, the officers of Holdco
shall be the persons serving as officers of Alamosa immediately prior to
the Effective Time.
3.2 Holdco Certificate of Incorporation. As of the Effective
Time, the certificate of incorporation of Holdco (the "Holdco Charter")
shall contain provisions identical to the Alamosa Charter immediately prior
to the Effective Time, which provisions shall, among other things, reflect
the change of Holdco's name to "Alamosa PCS Holdings, Inc."
3.3 Holdco Bylaws. As of the Effective Time, the bylaws of
Holdco (the "Holdco Bylaws") shall contain provisions identical to the
Alamosa Bylaws immediately prior to the Effective Time. To that end, prior
to the Effective Time, to the extent necessary to give effect to the intent
of the preceding sentence, Holdco shall take all requisite action to cause
the Holdco Bylaws, as the same theretofore may have been amended, altered,
changed and/or supplemented, to be duly amended and restated in accordance
with the DGCL to contain provisions identical to the Alamosa Bylaws
immediately prior to the Effective Time, and as so amended and restated
such Holdco Bylaws shall be and remain the Holdco Bylaws upon and after the
Effective Time, unless and until thereafter duly amended, altered, changed,
repealed and/or supplemented in accordance with the DGCL (which power and
right to amend, alter, change, repeal, and/or supplement, at any time and
from time to time after the Effective Time, are hereby expressly reserved).
3.4 No Alamosa Stockholder Meeting; Holdco Sub Stockholder
Written Consent. The parties understand and acknowledge that it is
contemplated that the Merger will be effected in accordance with Section
251(g) of the DGCL and that no vote of Alamosa's stockholders adopting,
approving or authorizing this Agreement and the transactions contemplated
hereby, including the Merger, will be required under the DGCL. Holdco, in
its capacity as the sole stockholder of Holdco Sub, as promptly as
practicable on or after the date hereof, shall execute and deliver to
Holdco Sub a written consent in lieu of a stockholder meeting adopting,
approving and authorizing this Agreement and the transactions contemplated
hereby, including the Merger, in accordance with Section 228 of the DGCL.
3.5 Employee and Director Alamosa Stock Options. Upon and as of
the Effective Time, to the fullest extent permitted by applicable law,
Holdco shall assume all of Alamosa's obligations, and Alamosa shall have no
further obligations, with respect to any then-outstanding option (each, if
any, an "Alamosa Option") to acquire shares of Alamosa Common Stock issued
under any employee or non-employee director stock option plan, agreement
or similar arrangement of Alamosa and the due exercise of rights under any
such Alamosa Option shall entitle the holder thereof to acquire, upon the
same terms and conditions that were applicable under the corresponding
Alamosa Option, a number of shares of Holdco Common Stock identical to the
class and number of shares of Alamosa Common Stock that were subject to
such corresponding Alamosa Option (a "Holdco Option"). Alamosa and Holdco
agree to take all corporate and other action as shall be necessary to
effectuate the foregoing, and Alamosa shall use its best efforts to obtain,
if required, prior to the Closing Date, such consent of each holder of an
Alamosa Option as shall be necessary to effectuate the foregoing. Holdco
shall take all corporate and other action necessary to reserve and make
available for issuance upon the due exercise of rights under the Holdco
Options a sufficient number of shares of Holdco Common Stock, and as soon
as practicable following the Effective Time, shall provide to the record
holders of the Holdco Options appropriate notice of such holder's rights
thereunder.
3.6 Outstanding Holdco Common Shares. Upon and as of the
Effective Time, Alamosa shall surrender to Holdco the certificate
representing the Outstanding Holdco Common Shares, and the Outstanding
Holdco Common Shares shall be retired as permitted under the DGCL and
resume the status of authorized and unissued shares of Holdco Common Stock.
3.7 Other Agreements. At the Effective Time, Holdco shall
assume any obligation of Alamosa to deliver or make available shares of
Alamosa Common Stock under any instrument, agreement or employee benefit
plan not referred to in this Section 3 to which Alamosa or any of its
subsidiaries is a party. Any reference to Alamosa Common Stock under any
such instrument, agreement or employee benefit plan shall be deemed to be a
reference to Holdco Common Stock and one share of Holdco Common Stock shall
be issuable in lieu of each share of Alamosa Common Stock required to be
issued by any such instrument, agreement or employee benefit plan, subject
to subsequent adjustment as provided in any such instrument, agreement or
employee benefit plan.
3.8 Holdco as Successor Registrant to Alamosa. (a) It is the
intent of the parties hereto that Holdco, as of the Effective Time, be
deemed a "successor issuer" for purposes of Rule 12g-3(a) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), so that
Holdco Common Stock shall be deemed registered under Section 12 of the
Exchange Act.
(b) It is the intent of the parties hereto that Holdco, as of
the Effective Time, be deemed a "successor issuer" for purposes of Rule 414
under the Securities Act of 1933, as amended (the "Securities Act"), so
that Holdco need not file a new registration statement under the Securities
Act for the offering of securities covered by Alamosa's currently effective
registration statement on Form S-8 relating to the registrations of shares
of Alamosa Common Stock that may be issued pursuant to the terms of
Alamosa's 1999 Long Term Incentive Plan.
3.9 Listing of Holdco Common Stock. Holdco shall use its
reasonable efforts to cause the Holdco Common Stock to be issued and
initially reserved for issuance pursuant to the transactions contemplated
herein to be approved for quotation, upon official notice of issuance, by
The Nasdaq Stock Market, Inc.
3.10 Filings. At the Effective Time, the Surviving Corporation
shall cause a certified copy of this Agreement to be executed and filed
with the Delaware Secretary of State. At the Effective Time, to the extent
necessary to effectuate the amendments to the Surviving Corporation Charter
and the Holdco Charter contemplated by this Agreement, each of the
Surviving Corporation and Holdco shall cause to be filed with the Delaware
Secretary of State such certificates or documents required to give effect
thereto.
ARTICLE IV
CONDITIONS PRECEDENT
4.1 Conditions to Each Party's Obligation to Effect the Merger.
The respective obligations of each party under this Agreement shall be
subject to the satisfaction at or prior to the Closing of the following
conditions:
A. Stockholder Approval. This Agreement shall have been
approved by the written consent of the holder of the Outstanding
Holdco Sub Shares.
B. Legal Action. No judgment, order, decree, statute,
law, ordinance, rule or regulation, entered, enacted, promulgated,
enforced or issued by any foreign, United States, state or local
governmental entity or municipality or subdivision thereof or court,
tribunal, commission, board, bureau, agency or legislative,
executive, governmental or regulatory authority or agency ( a
"Governmental Entity") of competent jurisdiction or other legal
restraint or prohibition shall be in effect preventing the
consummation of the Closing.
C. Statutes. No statute, rule or regulation shall have
been enacted by any Governmental Entity that would make the
consummation of the Merger illegal.
D. Alamosa Board Determination. The Alamosa Board shall
not have altered or rescinded its determination that the Alamosa
stockholders shall not recognize gain or loss for United States
Federal income tax purposes as a result of the transactions
contemplated hereby and that the Merger and the exchange of shares of
capital stock of Alamosa for shares of capital stock of Holdco shall
be deemed a transaction described in Section 351(a) and/or 368(a) of
the Code.
4.2 Conditions to the Obligations of Alamosa and Holdco Sub to
Effect the Merger. The obligations of Alamosa and Holdco Sub to effect the
Merger shall be subject to the satisfaction of the condition that
immediately prior to the Effective Time, Holdco shall have fully performed
its obligations under Article III hereof.
ARTICLE V
TERMINATION AND AMENDMENT
5.1 Amendment. At any time prior to the Effective Time, this
Agreement may be supplemented, amended or modified by the mutual consent of
the Boards of Directors of the parties hereto.
5.2 Termination. This Agreement may be terminated and the
Merger contemplated hereby abandoned at any time prior to the Effective
Time by action of either the Alamosa Board, the Holdco Board or the Board
of Directors of Holdco Sub, if such Board of Directors shall determine that
for any reason the completion of the transactions provided for herein would
be inadvisable or not in the best interest of such corporation and its
stockholders. In the event of such termination and abandonment, this
Agreement shall become void and neither Alamosa, Holdco, or Holdco Sub nor
their respective stockholders, directors or officers shall have any
liability with respect to such termination and abandonment.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 Severability. If any term or other provision of this
Agreement is invalid, illegal, or incapable of being enforced by any rule
of law or public policy, all other terms, conditions, and provisions of
this Agreement shall nevertheless remain in full force and effect so long
as the economic or legal substance of the transactions contemplated hereby
is not affected in any manner adverse to any party. Upon such determination
that any term or other provision is invalid, illegal, or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the extent possible.
6.2 Entire Agreement. This Agreement, including the Exhibits
attached hereto, constitutes the entire agreement among the parties
regarding the subject matter hereof, and supercedes all prior agreements
and undertakings, both written and oral, among the parties or of any of
them regarding such subject matter.
6.3 Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of
Delaware.
6.4 Headings. The headings set forth herein are for convenience
only and shall not be used in interpreting the text of the section in which
they appear.
6.5 Counterparts. This Agreement may be executed in one or more
counterparts which together shall constitute a single agreement.
6.6 Certificates of Secretaries. The certificates of the
respective secretaries of Alamosa and Holdco Sub to be attached hereto are
hereby incorporated by reference and shall be deemed on and part of this
Agreement.
IN WITNESS WHEREOF, Alamosa, Holdco and Holdco Sub, pursuant to
the approval and authority duly given by resolutions adopted by their
respective Boards of Directors, have caused this Agreement to be executed
as of the date first above written by their respective officers thereunto
duly authorized.
ALAMOSA PCS HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Chief Executive Officer
TWENTY HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: President
TEN ACQUISITION, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: President
Exhibit A
CERTIFICATE OF THE SECRETARY OF ALAMOSA PCS HOLDINGS, INC.
The undersigned, as Secretary of Alamosa PCS Holdings, Inc., a
corporation organized and existing under the laws of the State of Delaware
(the "Corporation"), hereby certifies that the Agreement and Plan of Merger
(the "Agreement") to which this Certificate is attached has been executed
on behalf of the Corporation by the Chief Executive Officer. The Agreement
has been adopted by the Board of Directors of the Corporation pursuant to
Section 251(g) of the Delaware General Corporation Law and the conditions
specified in the first sentence of such subsection have been satisfied.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate as of this ____ day of December, 2000.
By:
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Secretary
Exhibit B
CERTIFICATE OF THE SECRETARY OF TEN ACQUISITION, INC.
The undersigned, as Secretary of Ten Acquisition Inc., a
Delaware corporation (the "Corporation"), hereby certifies that the
Agreement and Plan of Merger (the "Agreement") to which this Certificate is
attached has been executed on behalf of the Corporation by the President.
The Agreement was duly adopted by the Board of Directors of the Corporation
in accordance with Section 251 of the Delaware General Corporation Law and
by the written consent of the sole stockholder of the Corporation in
accordance with Section 228 of the Delaware General Corporation Law.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate as of this ___ day of December, 2000.
By:
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Secretary
